Fiedler v. Smith

60 Mass. 336, 6 Allen 336

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1850
• Status: Published

Opinion

Metcalf, J.

The main question in this case is, whether the action is rightly brought by the plaintiffs, or should have been brought by Sherman. And this depends on another question, namely, whether the contract was made with the plaintiffs or with Sherman only. If it was made with the plaintiffs, doubtless they may sue in their own names for a breach of it.

In Addison on Contracts, 257, the law on this subject, applicable to simple contracts, is thus stated: “ If a person, on the face of a written document, appears to be an agent, contracting on behalf of a named principal, the contract is, in contemplation of law, made with the principal, from whom the consideration moves, and who is the really contracting party, and not with the mere agent or instrument of communication, unless the latter has himself an interest in the contract.” The same position, substantially,- is found in other books, and is fully sustained by adjudged cases. See Abbey v. Chase, (ante, 54.)

The contract, on which this action is brought, recites that Sherman, “ as the special agent of the plaintiffs,” was willing that the replevied articles should remain in use in the print works, until the final issue of the replevin suit, on certain specified terms ; and the defendants agreed with him, that if he would permit those articles to remain in use, where they then were, until the final issue of said suit, the defendants would, upon demand made by him, deliver to him such of those articles as should be adjudged to belong to the plaintiffs, and would guaranty to him, “ as the agent of the plaintiffs,” payment of a reasonable rent for such use of said articles.

This seems to us to be, on the face of it, a contract with Sherman, as the plaintiffs’ agent; and ^therefore, in contemplation of law, it is a contract with the plaintiffs, and they are entitled to maintain an action on it, in their own names. By thus bringing the action, they have ratified Sherman’s agency. The contract was therefore rightly admitted in evidence, as a contract with the plaintiffs.

The authorities cited by the plaintiffs’ counsel show that Sherman was rightly admitted as a witness, and that the instructions to the jury, concerning the demand made on the defendants, were correct. And there can be no doubt as to the admissibility of a written contract in evidence, to prove the contract declared on, though the declaration does not aver that it was in writing. It is generally unnecessary, in declaring on a simple contract which is in writing, to allege it to be so. This allegation is not required, even in declarations on contracts that are within the statute of frauds.

Exceptions overruled.